S.D.Fla.: Lengthy pole camera surveillance of commercial property is far different than surveillance of the home

Lengthy pole camera surveillance of commercial property is far different than pole camera surveillance of the home. It was all of a public area where there was a diminished expectation of privacy. United States v. Moore, 2014 U.S. Dist. LEXIS 129323 (S.D. Fla. September 16, 2014):

The crux of Defendant’s argument is that the length of the surveillance should take the surveillance at issue out of the realm of cases concluding that there is no Fourth Amendment protection. See ECF No. [174] at 2-3 (citing United States v. Houston, 965 F. Supp. 2d 855 (E.D. Tenn. 2013)). Defendant argues this lengthy warrantless surveillance violates his expectation of privacy because, although the area under surveillance was in plain sight, the information gathered over such a long period of time revealed more personal information than that which would be obtained for a shorter period. As such, according to Defendant, the Fourth Amendment protects an individual’s multiple public locations over time from warrantless surveillance because the information obtained also reveals personal information that an isolated surveillance would not. See ECF No. [166] at 5-7 (citing United States v. Jones, 132 U.S. 945, 954-957 (2012) (Sotomayor, J., concurring). Thus, the eight (8) month surveillance of Defendant was able to reveal his “likeness, location, and behavior,” in violation of Defendant’s Fourth Amendment rights. ECF No. [166] at 7.

The Defendant’s reliance on Houston, supra, and Jones, supra, is misplaced. In Houston, the surveillance occurred outside the defendant’s home, which warranted increased privacy concerns. 965 F. Supp. 2d at 871. See also Oliver v. United States, 466 U.S. 170, 180 (1984) (explaining that curtilage, the land immediately surrounding and associated with the home, is protected by the Fourth Amendment the same way the actual home is protected). In the present situation, the surveillance occurred on commercial property where the expectation of privacy is significantly diminished, if present at all.

Additionally, when reaching its decision in Jones, supra, the Supreme Court focused on the fact that, in that case, a physical trespass to obtain information had occurred. 132 U.S. at 945. The placement of the GPS device on the defendant’s car was deemed sufficient to constitute a physical trespass, thus the Supreme Court’s decision did not rest on a right of privacy argument. Id. at 952. The expectation of privacy discussion found in the concurrence of Jones was based on the detailed data obtained by tracking an individual’s travels to many different locations over a period of time. That factual circumstance is distinguished from a pole camera installed to capture a particular area over time, operating without any physical trespass, and not intrusive enough to capture anyone who may be in their home or other locations of privacy. Id. at 954-957.

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